The opinion
Case: 21-60223 Document: 00516581944 Page: 1 Date Filed: 12/19/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 19, 2022
No. 21-60223
Lyle W. Cayce
Clerk
Zena Gebrgzabher,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A212 904 283
Before Graves, Willett, and Engelhardt, Circuit Judges.
Don R. Willett, Circuit Judge:
Federal immigration law contains a provision, the so-called
“persecutor bar,” that denies refugee status to anyone who “assisted, or
otherwise participated in the persecution of any person on account of race,
religion, nationality, membership in a particular social group, or political
opinion.” 1 This case asks what sort of actions along the continuum of
conduct qualifies as persecutory assistance or participation.
1
8 U.S.C. § 1101(a)(42).
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Zena Gebrgzabher, an Eritrean citizen, was forcibly conscripted into
the Eritrean National Service, an open-ended requirement of compulsory
service, and made to work as an armed guard at a highway checkpoint through
which Eritrean security forces brought detainees. Several years later,
Gebrgzabher escaped and made his way to America, where he applied for
asylum and withholding of removal. The Board of Immigration Appeals
(BIA) concluded that Gebrgzabher was ineligible because he assisted in the
persecution of captives by impeding their escape at the checkpoint. As the
BIA’s determination is supported by substantial evidence—that is, the
record does not compel a contrary result—we deny Gebrgzabher’s petition. 2
I
Zena Gebrgzabher is a native citizen of Eritrea, an autocratic, highly
militarized country in the Horn of Africa region. In 2005, when he was 18
years old, he was conscripted into the Eritrean National Service. After six
months of training, the National Service assigned Gebrgzabher to a unit
guarding a highway checkpoint. Four soldiers at a time guarded the
checkpoint, while the others did chores. Gebrgzabher’s guard duties
included checking vehicle registrations and inspecting vehicles for
contraband as they passed through the checkpoint.
Once a week to twice a month, security forces passed through the
checkpoint with prisoners who were considered traitors for attempting to
leave Eritrea without permission. These prisoners were usually barefoot,
bloodied, and had their arms tied behind their backs with rope. Gebrgzabher
saw security forces hitting the prisoners while unloading and loading them
into the transport vehicle. He would watch the prisoners for 5–10 minutes
2
Gebrgzabher retains relief under the Convention Against Torture as determined
by the Immigration Judge and unchallenged by the Government.
2
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while one of the security force guards took a prisoner list to the checkpoint
commander. Gebrgzabher testified that the prisoners had their own guards
so his job was not just to watch the prisoners but also to watch the security
guards and inspect the security vehicle. Still, if he failed to watch the
prisoners he would be detained.
In 2007, after a year manning the checkpoint, Gebrgzabher was
transferred to a government bakery, where he baked bread for several years.
In 2014, Gebrgzabher was imprisoned for three months for overstaying leave
and forced to do hard labor. After his release, Gebrgzabher returned to the
bakery for a short period before fleeing Eritrea into Sudan through a smuggler
in December 2015.
In February 2017, Gebrgzabher applied for admission into the United
States at the Port of Entry in Hidalgo, Texas without a valid entry document.
Soon after, the Department of Homeland Security (DHS) served
Gebrgzabher with a Notice to Appear charging him with removability under
the Immigration and Nationality Act. At a master calendar hearing that April,
Gebrgzabher conceded his removability and applied for asylum, withholding
of removal, and protection under the Convention Against Torture (CAT).
Gebrgzabher testified in support of his application at a merits hearing
held in May 2017. The Immigration Judge (IJ) questioned him about his role
supervising others as a guard at the checkpoint. Gebrgzabher testified that he
was not a supervisor and that his contradictory statement in the credible fear
report was a translation error. But he admitted to having watched the political
prisoners who passed through the checkpoint and that, if he had not watched
them, they would have tried to escape. As to the prisoners’ fates,
Gebrgzabher stated that he believed they would be killed, tortured, or
indefinitely detained.
3
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The IJ initially orally denied Gebrgzabher’s request for asylum and
withholding and granted his request for CAT relief, but sua sponte vacated
the decision the next day for further consideration. In July 2017, the IJ issued
a written decision finding Gebrgzabher to be credible but denying him asylum
and withholding. The IJ concluded that by guarding, and thus impeding the
escape of, persecuted prisoners being “transported to their indefinite
detention or their death,” Gebrgzabher had “ordered, incited[,] assisted, or
otherwise participated in” persecution under the persecutor bar. The IJ
rejected Gebrgzabher’s argument that he lacked the requisite intent to
persecute the prisoners and declined to find a duress exception to the bar.
However, the IJ granted Gebrgzabher CAT relief.
Gebrgzabher appealed the decision to the BIA and moved to remand
the proceedings for the IJ to consider whether he was entitled to a duress
exception to the persecutor bar. The BIA dismissed the appeal in February
2021. Citing the IJ’s findings and conclusions, the BIA concluded that
Gebrgzabher’s guard duties invoked the persecutor bar and that Gebrgzabher
had failed to meet his burden of proving by a preponderance of the evidence
that the bar did not apply. The BIA also denied Gebrgzabher’s motion to
remand based on a recent Attorney General opinion concluding that the
persecutor bar did not include a duress exception.
Gebrgzabher timely filed this petition for review. 3
II
“We generally have authority to review only the decision of the
BIA.” 4 But we will consider the IJ’s decision when, as here, “the IJ’s ruling
3
See 8 U.S.C. § 1252(b)(1).
4
Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007).
4
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affects the BIA’s decision.” 5 We review the BIA’s and IJ’s legal
conclusions de novo, but any factual conclusions, including whether an
applicant is ineligible for asylum, for substantial evidence. 6 To succeed on
substantial evidence review, a petitioner must demonstrate that “the record
evidence ‘compels’ a conclusion contrary to the agency’s determination.” 7
That is, the evidence must be “so compelling that no reasonable factfinder
could reach a contrary conclusion.” 8
III
“Section 208(a) of the Immigration and Nationality Act authorizes
the Attorney General, in his discretion, to grant asylum to an alien who is a
‘refugee’ as defined in the Act.” 9 Importantly, the Act excludes from the
term “refugee” any person “who ordered, incited, assisted, or otherwise
participated in the persecution of any person on account of race, religion,
nationality, membership in a particular social group, or political opinion.” 10
This is known as the “persecutor bar” and it “applies to those seeking
asylum or withholding of removal.” 11 However, it “does not disqualify an
alien from receiving a temporary deferral of removal under the [CAT].”12
When the record contains evidence indicating that a ground for mandatory
5
See id.
6
Id. at 594 (quoting Fonseca-Leite v. INS, 961 F.2d 60, 62 (5th Cir. 1992)); Gjetani
v. Barr, 968 F.3d 393, 396 (5th Cir. 2020) (quoting Zhao v. Gonzales, 404 F.3d 295, 306 (5th
Cir. 2005)).
7
Gjetani, 968 F.3d at 396.
8
Chen v. Gonzales, 470 F.3d 1131, 1135 (5th Cir. 2006)
9
I.N.S. v. Elias–Zacarias, 502 U.S. 478, 481 (1992) (citation omitted).
10
8 U.S.C. § 1101(a)(42).
11
Negusie v. Holder, 555 U.S. 511, 514 (2009) (citation omitted).
12
Id.
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denial of the application for relief—such as the persecutor bar—may apply,
the alien has the burden of proving by a preponderance of the evidence that
it does not. 13
Gebrgzabher challenges both the method and merit underlying the
IJ’s finding that the persecutor bar applies to him. As to the method,
Gebrgzabher argues that the IJ applied the wrong test in determining
whether he had assisted in the persecution of the political prisoners passing
through the checkpoint. Citing a 2008 Eleventh Circuit case, he asserts that
the IJ should have conducted a particularized, fact-intensive inquiry into
whether his “personal conduct was merely indirect, peripheral and
inconsequential association or was active, direct and integral to the
underlying persecution.” 14 The Government asks us to instead defer to the
BIA’s determination in Matter of D-R- (Matter of D-R-II) 15 that the correct
test for assessing the applicability of the persecutor bar considers (1) the
nexus between the petitioner’s role, acts, or inaction, and the persecution,
and (2) the petitioner’s scienter. 16
We have not expressly adopted a standard for determining whether an
alien “assisted, or otherwise participated in persecution,” and we need not
do so now. The IJ’s determination that the persecutor bar applies here is
13
See 8 C.F.R. § 1240.8(d).
14
Chen v. U.S. Atty. Gen, 513 F.3d 1255, 1259 (11th Cir. 2008). The Government
argues that Gebrgzabher distorts the Eleventh Circuit’s test in Chen. We do not address
whether Gebrgzabher properly describes Chen because we conclude that his petition fails
even under his iteration of the Chen test.
15
27 I. & N. Dec. 105 (BIA 2017).
16
Id. at 119.
6
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supported by substantial evidence even under Gebrgzabher’s preferred
standard. 17
Again, to succeed, Gebrgzabher must show that “the record evidence
compels a conclusion contrary to the agency’s determination.” 18 The record
established that Gebrgzabher guarded prisoners who were detained for being
perceived political traitors, knew these prisoners faced long imprisonment or
death, and still impeded their escape. As the BIA reasoned in adopting the
IJ’s findings, Gebrgzabher’s actions were “not merely tangential or
incidental” to the persecution “when the record is viewed as a whole.”
Instead, Gebrgzabher’s assistance in guarding the prisoners helped further
their persecution.
Gebrgzabher argues that the IJ did not properly consider evidence
that (1) he had no role in arresting, harming, or securing the prisoners for any
long duration as they had their own guards at the checkpoint, (2) he was not
armed at the checkpoint, and (3) he was engaged in legitimate law
17
The Government contends that Gebrgzabher waived and failed to exhaust his
argument that the evidence was insufficient to implicate the persecutor bar. The failure to
exhaust a remedy before the BIA deprives us of jurisdiction. Martinez-Guevara v. Garland,
27 F.4th 353, 359 (5th Cir. 2022). Claims that the BIA considered are exhausted. Id. at 360.
So a petitioner exhausts a claim if he can reasonably tie what he said to the BIA to the
claims before us. Id. at 361.
Here, the BIA’s decision recognized Gebrgzabher’s arguments that the IJ
“misstated the record or overlooked facts in arriving at the conclusion that the persecutor
bar applied,” as well as his discrete arguments on nexus and scienter. Likewise, here,
Gebrgzabher argues that the evidence under the correct test is insufficient to establish that
the bar applies. Gebrgzabher’s claims here are reasonably tied to his claims before the BIA.
Thus, Gebrgzabher’s argument that the persecutor bar was not triggered is properly before
us.
18
Gjetani, 968 F.3d at 396 (quotation marks omitted).
7
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enforcement activities when the prisoners passed through. But none of these
arguments undermines the BIA’s and IJ’s conclusion.
First, Gebrgzabher “need not engage in the commission of physical
atrocities to be found to have ‘assisted’ or ‘participated’ in them.” 19 And the
existence of other guards does not change that Gebrgzabher guarded the
prisoners, too. The statute bars not just the primary persecutor, but also
those who “assist” or “participate[] in” the persecution. 20 Moreover,
Gebrgzabher testified that the prisoners would have tried to escape had he
not been there. By his own admission, he prevented the political prisoners
from escaping (furthering their persecution) even though other guards were
present.
Second, Gebrgzabher concedes that the record before the BIA was
silent on whether he carried a firearm at the checkpoint. He argues that his
testimony that the guards were not allowed to use their firearms outside of
training can only be interpreted as him not carrying a firearm at the
checkpoint. 21 In his view, this shows that he was not solely responsible for
guarding the prisoners. But Gebrgzabher’s testimony is susceptible to an
alternative interpretation: he could carry and even brandish his firearm, thus
dissuading escape, even if he was not allowed to fire it. Indeed, even assuming
19
United States v. Vasquez, 1 F.4th 355, 361 (5th Cir. 2021) (per curiam).
20
8 U.S.C. § 1101(a)(42).
21
Gebrgzabher gave the following testimony in his credible-fear interview:
Q: When you were you [sic] in the national service did you ever use a
weapon outside of training?
A: What do you mean by use?
Q: Use, to fire, to put it for whatever use it was made for.
A: They only train us they don’t allow us to use it.
8
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Gebrgzabher was unarmed, he nonetheless hindered detainees from fleeing
by standing guard at the checkpoint. 22
Finally, Gebrgzabher’s engagement in purportedly legitimate law
enforcement activity does not immunize him from the persecutor bar. 23 To
be sure, when an applicant does “not exclusively engage in the persecution”
we must decide whether he “actually assisted or otherwise participated in
the persecution.” 24 Thus courts have held that the persecutor bar does not
apply when an applicant only engaged in legitimate law enforcement activity
and the Government failed to establish a connection between that legitimate
activity and the persecution. 25 That is not the case here. The record supports
the BIA’s conclusion that Gebrgzabher assisted in persecution by impeding
the escape of the persecuted prisoners.
In sum, none of this evidence compels us to conclude that no
reasonable factfinder could agree with the BIA that Gebrgzabher failed to
meet his burden of rebutting the application of the persecutor bar. Our
decision does not affect the IJ’s unchallenged grant of CAT relief.
IV
The petition for review is DENIED.
22
See Chen, 513 F.3d at 1260 (“Those who perform the detention—whether by the
use of force, threat of force, or expression of authority meant to dominate and control—are
assisting in the underlying persecution.”).
23
See Naujalis v. INS, 240 F.3d 642, 647 (7th Cir. 2001); Singh v. Gonzales, 417
F.3d 736, 739–40 (7th Cir. 2005). Gebrgzabher tries to distinguish these cases by arguing
that the law enforcement activity in those cases was not entirely legitimate. But the BIA
implicitly concluded the same here as to Gebrgzabher’s guard activities. He fails to show
that determination was not supported by substantial evidence.
24
Singh, 417 F.3d at 739–40.
25
See, e.g., Diaz-Zanatta v. Holder, 558 F.3d 450, 469 (6th Cir. 2009).
9